USA v. Victor Gonzalez-Rosales, No. 11-51164 (5th Cir. 2012)
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Case: 11-51164 Document: 00512095429 Page: 1 Date Filed: 12/27/2012 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 11-51164 Summary Calendar December 27, 2012 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee, versus VICTOR GONZALEZ-ROSALES, Defendant-Appellant. Appeal from the United States District Court for the Western District of Texas USDC No. 4:11-CR-191-1 Before SMITH, PRADO, and HIGGINSON, Circuit Judges. PER CURIAM:* Victor Gonzalez-Rosales appeals the sentence imposed following his guiltyplea conviction of knowingly bringing an illegal alien into the United States, at * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Case: 11-51164 Document: 00512095429 Page: 2 Date Filed: 12/27/2012 No. 11-51164 a place other than a designated port of entry, for commercial advantage or private financial gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(i) and 18 U.S.C. § 2. Gonzalez-Rosales contends that the district court reversibly erred when it enhanced his offense level under U.S.S.G. § 2L1.1(b)(6) for transporting aliens in a way that created a substantial risk of death or serious bodily injury. We review the district court s application of the sentencing guidelines de novo and its findings of fact for clear error. United States v. Cuyler, 298 F.3d 387, 389 (5th Cir. 2002). The question whether conduct creates a substantial risk of death or serious bodily injury is a legal question that is reviewed de novo. United States v. Solis-Garcia, 420 F.3d 511, 514 (5th Cir. 2005). The factual findings underlying the legal determination of endangerment are not clearly erroneous if the district court s finding is plausible in light of the record as a whole. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008) (internal quotation marks and citation omitted). [A] district court is permitted to draw reasonable inferences from the facts, and these inferences are fact-findings reviewed for clear error as well. United States v. De Jesus-Ojeda, 515 F.3d 434, 442 (5th Cir. 2008) (internal quotation marks and citation omitted). The district court found that seven people were riding in a five-passenger GMC Yukon. In addition to the driver and front seat passenger, four aliensSS none with a seatbeltSSwere in the back seat. One was lying in the cargo area with an unsecured metal-rimmed tire and tire tool. The court determined that in the event of an accident, passengers not wearing their seatbelts would not have been as safe as those wearing them and that the person lying in the cargo area with the unsecured tire and tool would have been in an even more precarious position. Specifically, the court found that the unsecured, full-sized, metalrimmed tire was an aggravating factor that created a substantial risk of death or serious bodily injury, because it could have limited the aliens ability to exit the vehicle quickly. Further, if an accident had occurred, the tire and tool could have become dangerous projectiles or could have landed on top of the aliens. 2 Case: 11-51164 Document: 00512095429 Page: 3 Date Filed: 12/27/2012 No. 11-51164 The district court s factual findings are plausible in light of the record as a whole and thus are not clearly erroneous. See United States v. Mata, 624 F.3d 170, 175 (5th Cir. 2010). Therefore, the district court did not err when it enhanced Gonzalez-Rosales s offense level under § 2L1.1(b)(6). See Mata, 624 F.3d at 173-75; Cuyler, 298 F.3d at 390-91. AFFIRMED. 3
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